Welcome to Leicester, VT

Town of Leicester 

***Notice of Public Hearing*** 

Final Plan Application 

Appeal of Zoning Permit #11-24-ZA 

  

The Leicester Development Review Board will hold a public hearing on Tuesday, August 27, 2024, at the Leicester Town Office at 6:00 p.m. to consider the following applications: 

 

1.       (03-24 DRB), Jane L. Dessureault Family Trust, Section 6.1.1 Final Plan Application for a nine lot sub-division of a 123.7 acre parcel of land at the intersection of Shackett and Fern Lake Roads in Leicester, VT in accordance with the Leicester Unified Regulations.  Parcel ID #030032.01, Rural Agricultural (RA) District, submitted by Barnard & Gervais, LLC, dated February 28, 2024 

 

2.       (11-24-ZA)  Appeal of Zoning Permit #11-24-ZA, Claire McDonnell and Jim Myrick, P.O. Box 709, Killington. VT for a fence at 57 Johnson Drive, Leicester, VT  05733. 

 

Applications are available for inspection at the Town Clerk’s Office, 44 Schoolhouse Rd., Leicester, VT during regularly scheduled hours. 

  

Participation in this proceeding is a prerequisite to the right to take any subsequent appeal.  

  

Jeff McDonough 

DRB Chairman 

07/30/2024 

 

Town of Leicester, VT

Development Review Board

Minutes of Public Hearing August 27, 2024

 

Members present:	Jeff McDonough	Participants:	Jane Dessureault
	Jay Michael		Jan Sherman
	Donna Swinington		James Sherman
	Lyndsay D’Avignon		Richard Reed
Also present:	Keith Arlund		Matt Redel
Leicester Zoning			Jay Barnard
Administrator			Lisa Melanson
			Steve Melanson
			Matthew Zidovsky
			Robert Cappio

 

 

1. The Chair opened the hearing at 6:00 PM.
2. The agenda was reviewed and approved.
3. The Chair swore in all participants that desired to testify.
4. New Business: Item #1

Final Plan Review (03-24 DRB) of the Jane L. Dessureault Family Trust, Section 6.1.1 Preliminary Plan Application for a nine (9) lot major subdivision of a 123.7-acre parcel of land at the intersection of Shackett and Fern Lake Roads in Leicester, VT in accordance with Leicester Unified Zoning Bylaws dated April 10, 2017.  Parcel ID #030032.1, Rural Agricultural (RA) District, submitted by Barnard & Gervais, LLC, dated February 28, 2024.

 

Jay Barnard, Barnard & Gervais, LLC presented the following using Plat Maps:

 

• Last time we were here, May 14^th, one of my associates, Scott Baker presented the preliminary plans for the subdivision of the large parcel, currently undeveloped.  We are looking at 8 new lots with the remaining lot being lot 1, the 9th lot being leftover.  Lots two and three would be located on Shackett Road on the easterly side; there's a couple of small meadows that are on Shackett Road maybe 700 feet 800 feet down from the intersection of Fern Lake Road.  Each one of those would be developed with a single family home; we do have water and wastewater permits, as well as storm water infrastructure design.  We have not yet submitted these stormwater permit as we generally wait till our final plat hearing to do that.
• Lots 2 and 3 on Shackett Rd will be single family home bound systems, individual driveways; the wetlands have been delineated by our wetlands ecologist reviewed by the state wetland staff so the wastewater permit has been issued for the project by the state engineer. Access approval was granted by the select board at the beginning of August
• Lot 3 now going over on Fern Lake Road basically there's an existing log Road there now that would be the access, also approved, 18 foot wide shear gravel Road with one foot shoulders.  The road would go in the 1st house would be in the existing log header just off the road maybe a couple 100 feet and as you wind through permitted mound system, residents on lot 7 would have a short driveway.  Moving a little further up on, lot 5, single family home we looked at that one as well there's a little area of class 3 wetlands that we were able to avoid.  They're not jurisdictional but we didn't have any impacts permitted mound system; the objective when we designed and laid everything out was to keep the homes clustered to keep everything consolidated.  With stormwater practices you try to keep things so you don't have a lot of impervious area. I would consider the stormwater 85 to 90% complete: the structures, gravel, wetlands, dry ponds, infiltration ponds have been oversized at this point so if anything those will probably get scaled back
• I'm going in a little bit further to the end of the proposed subdivision 60 foot cul-de-sac 60 foot diameter cul-de-sac the radius of 30 feet so we have plenty of turn around proposed house for lot 9 at the end and then another the house for lot 6 just to the north we walked about to this point where the center of the radius was staked tonight this evening with Keith and Jeff
• I've looked at the road, that has to be widened to accommodate residential traffic from each one of these with about a foot of shoulder - about 20 feet width will allow ample room for cars to get through and in terms of access to all these parcels. Any questions?
• Jan Sherman: is the road actually a private road or will it be maintained by the town?
• Jay Barnard: that'll be a private road with an HOA setup and that's also required with the stormwater so that won't be town maintained Road We worked on the HOA docs and all the legal docs
• PL1 shows the overall parcel with each parcel you can see the yellow line is not a boundary line, that's actually just a map area that we zoom in on, it's not a boundary line
• PL2 shows the building envelopes bearings and distances on the building envelopes.  There will be pin set at each one of these corners by GPS
• PL3 shows the start of the road, the three northernmost lots and the dashed line is the existing log Road and goes to where the cul-de-sac is.  It does branch off in a couple of spots – where it will be used as part of the stormwater.  There's a gravel wetland here on lot 5 that would be used for stormwater collection and treatment and then there’d be a smaller gravel wetland on lot 4.  Everything has been sized up for a certain storm event by my stormwater engineer.  Stormwater is collected, held, and treated in the gravel wetland before flowing out to the wetland, which acts as a buffer
• PL4 is the southern side of the development road.  Lots 7, 8, and 9 have an existing boundary following a fence line and stone wall, which will serve as the points for pins set online along the southern boundary, as well as pins set internal to the subdivision.
• Some details on stormwater: the brown areas around the houses around the driveways are disconnects from the driveway, there's a certain green space which is allowed to treat storm water before it goes off site, and then you have a collection point - in this case, on lots 2 & 3, are dry ponds; they'll fill up, go down, and have a little spillway out to the road ditch – disconnected around the houses and from the roadway. They’re designed to keep a volume for a certain storm event.  Stormwater treatment was pretty conical at this site – ample space – and we didn't have to avoid wetlands and wetland buffers.
• At lots two and three, gravel wetland right when you first enter the site, the grading where the ditches are is a little steep.  Channel protection (done with RIP Wrap) will be used to prevent erosion and they will flow out to a culvert that goes across to the gravel wetlands.  There will be a collection point, an outlet structure that stores water over time and treats it before allowing water to discharge to the wetlands
• Ran profile on the private road driveway: 8.3 to 5.7% slope
• All lot sizes conform with the zoning regulations: met all the road frontage requirements we have all the setbacks here met in terms of internal, side yard, front yard, backyard and building envelopes have been established; state permits for water and wastewater systems have been issued; we are ready to submit applications for stormwater permits. Any questions?
• Jay Michael: we've talked a lot about storm water without talking about the magnitude of the storm it would be capable of handling.
• I always defer to my stormwater guy, [but my understanding is that they] size everything up [dry pond, etc.] for a 100 year storm event and oversize the channel protection to handle a 500 year storm event.  These are always conservative and over-designed – I don't know if anybody has any stormwater experience – in my opinion, these structures are always larger than they need to be.  Hot topic. Yes. Hot topic.
• Prior to last July, plots of less than one acre of impervious were not required to have a state-issued stormwater permit; now, all plots of impervious greater than ½ acre are required.  Zero lots in this subdivision are exempt and the requirements of the permit are satisfied.  Care has been taken to consider the impervious area to expand (i.e.: building a shed)
• Fire Protection: one of the board’s stipulations was to talk with the Fire Chief of Brandon – tried him about four or five times, he was kind of hard to get a hold of – did line up with him tonight and they are not requiring any fire protection.  I actually did talk with my stormwater guy this afternoon, Brad Washburn of Tailwater Engineering, and the fire chief about a possible additional protection -
• With the design of the gravel wetland, which means water goes in - you have wetland plants (pit plants) that filter the water as it goes down through the ground. Usually, they are dry, but we're looking at taking that uppermost gravel wetland, converting it into a fire pond and putting a dry hydrant right off of it for the fire department to use in case of a fire, which will keep insurance costs down for the people in the development.  This is not mandatory.
• There's a stream out between lots two and three on Shackett Road which would be an ideal location for a dry hydrant.  At present, that is wetland and would require special approval from the wetland folks.  This may or may not happen.  It’s not required by the fire department; it’s a recommendation
• He looked at all the plans and the access the road grade to confirm that all meets the standards in terms of either A76B71 standards
• Keith Arlund: To be clear, the state potable water and wastewater permits have all been approved – you have them here – and that essentially is the state subdivision requirement?
• Jay Barnard: Yes, once the state water and wastewater permit was issued – April 26 – and we will have to submit that and the following for recording: the stormwater permit, a notice of intent to discharge stormwater, and an erosion and sediment control permit for when the construction is happening (that's the silt fence, the stone check dams;  that's everything that keeps construction water on site.  That’s not the stormwater permit but they are issued simultaneously).
• There was a question at the first hearing on whether or not modular homes would be permitted.  As of right now, mobile homes, single-wide, double-wide, manufactured modular homes, yurts, and shacks are not permitted.  Did you think about that, Jane, the modular home aspect we talked about it at the last hearing?
• Jane Dessureault: I did and I had decided that I kind of wanted to keep it basically stick-built
• Covenants can be changed but it would take a vote with the HOA
• No further questions

 

5. Final Plan Review participants exited
6. The Chair swore in all participants who desired to testify in the next item on the agenda.
7. Item #2:

Matthew Zidovsky, Langrock, Sperry, and Wool, LLP, presented the following:

 

• I'm surprised that Claire [McDonnell] isn't here. Part of why we’re here is a lack of clarity as to what she's asking for and what the permit has been granted for.  I was hoping she would illuminate for everyone what she's trying to do, and in the absence of any argument from her, I think the way I would like to frame it, with your permission, is to talk about what Johnson drive is, the possible locations for this fence, and how they impact my clients and the use of their house.  
• [Claire has] supposedly flagged with some orange markers on trees and so on that come around, across that little cul-de-sac, and then head down on the edge. I guess on the edge of the Melanson's property, that she hasn't right away down the right but what's important to think about is that the does everybody have one of these because I'd like to just kind of mind if I stand so please do so come on in and
• [Refer to image] This is State Route 53, this is Johnson Dr. which historically was State Route 53.  It is a discontinued state road, subject to all laws, rights, protections around discontinued state roads and the rights of access for adjoining properties. I know that the state law around access to discontinued roads isn't necessarily a zoning issue but because it will be an issue depending on the outcome of this hearing, it looms in the background.  Miss Claire has asked for 180 foot fence on this property line that is poorly defined on this [hand-drawn diagram] map, but as I understand it, it's to come from somewhere down in the corner near this retaining wall [and] that Claire's house is here This is Johnson Dr. Steve and Lisa's house is right here and there's this cul-de-sac and then there's about a 10’ to 15’ drop down.  There're stairs that go down and their house sits down in a bowl; there's a retaining wall off to the side of it while their utilities are over here: lights, power, oil tank, wood deliveries; everything happens right over here and historically all of these service providers, Fire and Rescue, everybody would come in on Johnson drive and access the house and access to the side of the house through this “easement” that Claire has
• Depending on how long this fence is and where the placement of it is as I understand it what she wants to do it comes down beyond the retaining wall and put a fence in the middle of Old state road 53 and fence up along a line that cuts off Steve and Lisa's driveway, preventing them from accessing it
• fences are generally of right and we understand the rules are around fences but the zoning regulations broadly don't allow you to use your land in a way that unreasonably burdens other people and I think a big a big category of behavior that unreasonably burdens other people is cutting off their house from the road; there's no reasonable way to say that a fence of unknown length and unknown placement that cuts across Johnson drive and across the cul-de-sac that is their driveway isn't an unreasonable use of land that disrupt Steve and Lisa’s use of their property
• Claire was previously represented by an attorney; there was a letter that was submitted by the attorney to our office, Steve, Lisa, and then to my office and what it's what the letter said is you know because of the fence they're going to need to construct a new driveway. good they're going to have to come up here and come and enter their house by this dirt track. I can just leave a copy of the video [REFER TO VIDEO FILE]
• Lyndsay D’Avignon: so, you guys have an easement for the road that presently goes to your house that we would be cutting off?
• Matthew Zidovsky : Johnson drive is a private road that is a discontinued public Road but families on this street have been using this road for 60 years and it was discovered they granted easements – that are recorded – yeah right it's a discontinued public Road so there is an easement as a matter of law and to the extent that it is Claire's property the argument to the Superior Court will be that there's a prescriptive easement, this is my access to get to my house, that I've been using it for years. It's marginally more of a Superior Court argument than a zoning argument but I think it's important that you all understand the context of what she's trying to do here. what Claire is saying is you could just go around, I'm gonna cut off your access to your house, and you can just go around on this track. They're down on the water, there's a camp and so there's this 8 or 9 foot dirt track that pitches steeply downward about 150 feet down 16% and then there's a little flat and then it turns, and it comes back up 150 feet again it took about 15 or 16%. As a driveway, it doesn't meet any of the Leicester zoning regulations: it's not wide, it doesn't grade out right, and then even if it did you know even if it did once you get up into the cul-de-sac, if the fence is here, there's no 35 by 35 foot turning area where a fire engine or anybody can safely turn around.  This is a four season house, and by eliminating the access and eliminating the ability to service this proposed new route, it's entirely changing the scope of the property that they own
• The one other point I would like to make, the permit says this is a privacy fence – it’s not a privacy fence.  This whole cul-de-sac is wooded, [the area between Old State Route 53 and McDonnell’s residence] is all wooded, you know this isn't a privacy fence for people who need reasonable privacy from neighbors who are close in town; it serves no practical purpose particularly with respect to privacy, but then you've put a fence in the middle of a discontinued state road which violates state law.
• Keith Arlund established that the cul-de-sac had not been a part of the state road; it has been separate from the road for the last 58 years, per Steve Melanson
• Jay Michael: is the fence the new property line?
• Rights of Johnson Drive, as discontinued State Route 53, were Quit Claimed from Green Mountain Power to Claire McDonnell, per Lisa Melanson
• Attempts were made to understand the image submitted with her zoning application
• Regardless of specific understanding, any fence of that nature, landlocks the property of the Melansons
• Application and Granted Permit discovered to have different dimensions. Applicant requested 180 (one hundred eighty) foot structure; permit granted 40 (forty) feet
• Robert Cappio testified to the fact that a Survey Plat has been recorded at Leicester Town Office when he purchased his adjoining property.  The fence as drawn indicated crossing over his boundary line.
• Robert Cappio shares the dirt track with the Melansons and attested to its impassability as a driveway
• Lyndsay D’Avignon cited Leicester Zoning By-Law Section 4.2.1 and requirements for restricting access to another property had not been met
• Keith Arlund had granted a permit for a shorter length fence than requested in the application, and as it is in abeyance per this hearing.

8. Motion to deliberate; seconded
9. Motion to Approve Final Plans for Subdivision of the Jane L. Dessureault Family Trust; seconded
10. Motion to revoke Permit #11-24-ZA; seconded.  Motion passed unanimously.
11. Motion to adjourn; seconded

Keith O. Arlund

Leicester Zoning Administrator

 

Respectfully submitted,

Lyndsay D’Avignon, Board Member